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Petitioner: Azad J & Kl KABIR HUSSAIN SHAH VS Respondent: THE STATE
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Khawaja Muhammad Sharif, Chaudhry Rahim Dad Khan Title: Azad J & Kl KABIR HUSSAIN SHAH vs THE STATE Case No.: Criminal Appeal No, 13 of 1973 Date of Judgment:1974-04-03 Reported As: 1975 P Cr. L J 8 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' KHAWAJA MUHAMMAD SHARIF, C. J.-Kabir Hussain Shah aged 33 years was convicted by the Sessions Judge, Mirpur of an offence under section 302, A. P. C. And sentenced to death for the murder of Sher Khan aged 45 years by his order dated 16-8-1973. The convict has appealed against his conviction and sentence. The record is also before us for the confirmation of the death sentence. ' Prosecution story, briefly stated, is that on the 10th of February 1973, Faiz Ali Shah the absconding accused brought Sher Khan the deceased to his house where Karamat approver and Kabir Hussain Shah the accuse& appellant, under a pre-arranged plan, were already waiting for them. Faiz Ali Shah seated Sher Khan in a room after having asked his wife to take children to the back-yard of the house as he had guests. He served Sher Khan with fruit and then came out, chained the room in which Sher Khan was sitting from outride and asked Karamat and Kabir Hussain Shah to go into the room and finish Sher Khan. As the two entered the room Kabir Hussain Shah took up an iron-bar lying in the room and struck a blow on the head of Sher Khan. Sher Khan got up with the knife with which he was cutting the fruit in his hand and made for Kabir Hussain Shah. Karamat caught hold of the hand of Sher Khan in which he was holding the knife. Kabir Hussain Shah then gave a second blow with the iron-bar but the blow struck the right arm of Karamat with the result that his grip on Sher Khan became loose and Sher Khan got out of his control and ran outside. Faiz Ali Shah was standing outside who got hold of Sher Khan. Karamat and Kabir Hussain Shah also came out after Sher Khan and then all the three overpowered Sher Khan and took him inside the room where Faiz Ali Shah gave blows on the head and face of Sher Khan with bricks and stones. Sher Khan fell down and then Kabir Hussain Shah cut the throat of Sher Khan with the knife. Sher Khan died and then a
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cot was placed on the dead body. Karamat and Faiz Ali Shah changed their clothes and went out saying that they were going to have a bath. Then Faiz Ali Shah returned home at about 7 in the evening but Karamat went to his home village in Nakial. Kabir Hussain Shah spent the night in the house. Early in the morning Faiz Alt Shah went out and brought Shabbir Shah driver at about 8 in the morning. Then Faiz Ali Shah went to arrange for a jeep. He returned at about 1 p.m. And said that the jeep had been arranged. The battery had to be changed. Then he returned again at about 2-30 p.m. And said that the jeep has been arranged and asked Kabir Hussain Shah to arrange for an axe and cord for which he gave Kabir Hussain Shah Rs, 5. Then at about Peshi Vela Kabir Hussain Shah and Kazim Shah who had also come up went to the Bazar and purchased an axe for Rs, 3 and then they got a handle attached to the axe from Mistri Ghulam Hussain for Rs, 1.50. Kazim Shah then took Shabbir Hussain to his house which is near the hospital and took a cord from the almirah. With the cord and axe both returned to the house of Faiz Ali Shah. Faiz Ali Shah also returned to the house at 5 p.m. And said that the jeep was ready and let us try the same. After the trial of the jeep at about 6 or 6-30 p.m. Faiz Ali Shah put 8 gallons of petrol into the jeep tank from the petrol pump. Then Kabir Hussain Shah returned to the house of Fair Ali Shah. Karamat had also returned by this time to the house of Fain Ali Shah. Faiz Ali Shah then asked his wife Mst. Nishat Begum to keep ,an empty box ready. Karamat then asked Kabir Hussain Shah to cut out the dead body into pieces. Karamat cut the legs from down the knees. He also cut the arms and the head with the axe. On taking the measurement of the box, the stump was again cut from the thighs. The dead body was wrapped in a black chaddar and all the pieces were tied with the cord. Karamat put the pieces of the dead body into the box and Kabir Hussain Shah locked the box. Then Faiz Ali Shah returned to the house and seeing that everything was ready brought the jeep in the lane of Faiz All Shah's house. Kabir Hussain Shah and Karamat carried the box to the jeep. While they were carrying the box one Gulzar Mirza came up and he asked Faiz Ali Shah as to where were they going. Faiz Ali Shah told that he was going on an urgent errand. The movements and conduct of Faiz Ali Shah and his companions aroused suspicion of Gulzar Mirza who, after the jeep had left, went to the house of Faiz Ali Shah. The door of a room was open. With a torch that he had in his hand Gulzar Mirza saw some -clothes lying scattered about and blood stains on the walls and the floor. He then went to the police station and informed the police of what he had -:seen. The F. I. R. Was registered at the police station at 9 p.m. On 11-2-1973. When Sher Khan came out of the room into the courtyard of the house of Faiz All Shah after having received a blow with an iron-bar on his head and he was stopped by Faiz Ali Shah and dragged inside the house by all She three, the incident was witnessed by two women Mst. Sabran and Mst. Begum Jan who were on the roof of an adjoining house overlooking -the courtyard of Faiz Ali Shah's house. Mst. Sabran and Mst. Begum Jan both but separately went to the house of Faiz Ali Shah and asked his wife Mst. Nishat Begum as to what was the hue and cry about to which Mst. Nishat Begum replied that Faiz Ali Shah had beaten a cleaner over some money matter. Then the next day Nusrat the daughter of Faiz All Shah came to the house of Begum Jan for an egg and on her int:114y told Begum Jan that a Pathan had been murdered in their house. The police started investigation. The S. H. 0. Was not at the police station. He returned to Kotli in the early hours of the morning of 13-2-1973 and taking the investigation into his own hands arrested Kabir Hussain Shah within a couple of hours of the investigation. Kabir Hussain Shah on his arrest led the police 10 a place across the Holar bridge into the jungle at a place two miles away from Holar Bridge in Pakistan and pointed out the place where he had thrown the dead body. Kazim Shah had also been taken by the police but Kabir Hussain Shah first led the police to the place where he 'had emptied the box and thrown the dead body. It may be mentioned here that Faiz Ali Shah, Karamat, Kazim Hussain Shah and Kabir Hussain Shah had carried the dead body in a box to the judge where Kabir Hussain Shah opened the lock of the box and threw out the remains of Sher Khan deceased. On Kabir Hussain
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Shah's pointing out the place, the trunk of the deceased wrapped in the black chaddar was recovered from the jungle, as also some other limbs, on the 13th of February 1973, but the head was not recovered at that time. The head was recoverd later on 23-2-1973. The police had also taken with them one Yunus Butt to the place from which the recovery was made for the purpose of identification of the dead body. Yunus Butt was a friend of the deceased Sher Khan and he identified the dead body and the clothes that the deceased was wearing. Yunus Butt had earlier seen Sher Khan deceased in company with Faiz Ali Shah at about noon time on 10-2-1973 and before that he had been informed by Sher Khan ,deceased that he was to receive from Faiz Ali Shah that day an amount of Rs, 2,000 out of Rs, 3,000 that Faiz Ali Shah owed him. Karamat the approver was arrested by the police from Rawat, Rawalpindi District on 16-2-1973 and taken to Kotli on 17-2-1973. Karamat turned approver. Proceedings under section 512, Cr. P. C. Were taken against Faiz Ali Shah and after the trial Kabir Hussain Shah was convicted and sentenced as stated above. ' The prosecution rely on the statement of the approver, the recovery of the blood-stained knife and two blood-stained iron-bars, the recovery of the blood-stained earth from the floor of the room where the murder is alleged to have taken place and scrapings of the blood-stained earth from the walls. They also rely on the recovery of the blood-stained clothes of Karamat on his pointing out, from a room of Faiz Ali Shah's house as also on the retracted confession of Kabir Hussain Shah. ' The retracted confession had not been proved before the learned Sessions Judge. A copy of the confessional statement of Kabir Hussain Shah was placed on the file of the learned Sessions Judge and Mr. G. D. Ashai, Sub-Judge, Magistrate 1st Class, Kotli who had recorded the confessional statement of Kabir Hussain Shah appellant had also been cited as witness in the calendar of witnesses but the learned Public Prosecutor gave up some witnesses including Mr. Ashai even. The learned Advocate-General during the hearing of the appeal applied for additional evidence in the form of the confessional statement of Kabir Hussain Shah appellant. By our order dated 26-11-1973 we granted the request of the learned Advocate-General and summoned Mr. G. D. Ashai to prove the confessional statement of the appellant. The statement of Mr. Ashai was recorded on 17-12-1973 who duly proved the confessional statement of the appellant which was exhibited as P. T. The confessional statement was then put to the accused who stated that he had made the statement considering that the officer before whom he was making the statement was a police officer and under fear of police because they had been torturing him while he was under police custody. Asked about his signatures on the confessional statement existing on each page the accused stated that he could not remember whether he had signed his statement Exh. P. T. Or not and stated further that he does not sign in English but signs in Urdu. The signatures on each page of the confessional statement were in English. The appellant denied that the signatures were his. Asked if he wanted to recall any witness or adduce any defence evidence the appellant replied in "Yes" but then on 19-12-1973 he recorded his statement that after considering the matter he decided neither to recall any evidence nor to examine any witness in rebuttal. ' The approver in his statement and the appellant in his retracted confessional statement have stated that a fortnight before the occurrence Faiz Ali Shah went to Rawalpindi where Kramat approver was working in the Supply Department and sent for him and told Kabir Hussain Shah his cousin to employ Karamat as a Cleaner in the Urashia Travel Service, Rawalpindi which was owned by Maroof Malik of Kotli and where Kabir Hussain Shah was working as the Munshi of Maroof Malik. Kabir Hussain Shah accordingly employed Karamat as a Cleaner in the Urashia Travel Service. After about 15 days Faiz Ali Shah again came to Rawalpindi and calling Karamat and Kabir Shah both out of the office of Urashia Travel Service told them that he owed Rs, 3.000 to Sher Khan Pathan now working in Kotli and that if they would help him in killing Sher Khan, they could distribute the amount of Rs, 3,000 amongst themselves. After some hesitation Karamat and Kabir Shah both agreed. This talk took place at Rawalpindi between these three persons on 9-2-1973. At late in the
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night they left Rawalpindi by bus for Kotli where they reached early in the morning of 10-2-1973. Then, as the story told by the approver in his statement and the appellant in his retracted confession goes, Faiz All Shah told them that he was going to the Bank to make a drawal of Rs, 3,000 and after sometime returned with the money in a bag and when he went inside the room where Sher Khan was sitting, took the bag alongwith him and told the approver and the appellant that he is going to show the money to Sher Khan. After talking to Sher Khan for some time he came out and told the approver and the appellant both to go into the room and finish Sher Khan. ' It was argued by the learned counsel for the appellant that the conspiracy had not been proved and that the motive for the murder which was the distribution of Rs, 3,C00 between the absconder, the approver and the appellant, had also not been proved. It is, of course, correct that there is no direct evidence about these two points but then there was none else who was present or knew about the conspiracy hatched between the absconder, the approver and the appellant. The approver has deposed to these facts in his statement recorded from the witness-box and has been supported by the appellant in his confessional statement though of course, he has resiled from such confessional statement. However, we shall revert to this matter again. The prosecution did not reveal any motive, for the accused to join in the crime, in the F. I. R. This was revealed by the approver and the appellant in their confessional statements. It would be said about the motive also that if at all it was necessary to prove motive, the motive had been deposed to by the approver and also stated by the appellant in his retracted confessional statement. It was argued by the learned counsel for the appellant that the appellant had joined in the crime for the sake of money but then no money was paid to him nor is it in evidence that he ever asked for his share of the money and nobody knows what happened to that money which is alleged to have been drawn by Faiz Ali Shah from the Bank. Faiz Ali Shah is also an accused person and he is an absconder. Who knows he may not have drawn the money from the Bank and perhaps he had the money in his house about which he told the approver and the appellant that he was going to show to Sher Khan. Faiz All Shah might have taken away the b3g containing the money with him when he went with the dead body for its disposal. The approver and the appellant were not professional and confirmed assassins. They might have lost nerve after the disposal of the dead body and might have forgotten all about the move} and its distribution. ' About the two women prosecution witnesses-Mst. Sabran an( Mst. Begum Jan, it was argued by the learned counsel for the appellant that the two witnesses do not identify the accused or the approver and then their presence at the spot is doubtful because they differ amongst themselves wilt regard to their meeting Mst. Nishat the wife of Faiz Ali Shah absconded and inquiry about the incident that took place in their house on 10-3-1973 It is correct that at one place Mst. Sabran P. W. Stated that after seeing man running out from the house of Faiz Ali Shah into the courtyard am Faiz Ali Shah's stopping him and two other men coming out of the rout after them and then three man taking the man inside the house, they were to the house of Mst. Nishat Begum while Begum Jan states that she went to Nishat Begum alone. Cross-examined, Mst. Sabran stated that on the day following the incident she asked Mst. Nishat Begum as to what ha appended in their house and that when she asked Mst. Nishat she was all lone and Mst. Begum Jan was not with her and that she had asked this f Nishat at 12 noon of the next day. The doubt created had been cleared in the cross-examination of Mst. Sabran. Perhaps she was using the "'pedal 'we' for herself when she stated that we went and asked Mst. Nishat s to what had happened in their house. Mst. Begum Jan also stated in ross-examination that she and Sabran Bibi had enquired from Mst. Nishat legum about the incident separately. Learned counsel also argued that 1st. Sabran also stated that the man who rushed out of the house was saying while Mst. Begum Jan stated that the man was lying "12z - 2to ". This would not make much difference and would of be sufficient to reject the testimony of the two women witnesses. 'erhaps the deceased when he rushed out of the room into the
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courtyard Lsed both expressions. The P. Ws. We're recording their statements about months after the incident and if they do not agree as to the exact words by the injured man it would not be correct to reject their testimony. Loth these witnesses do not implicate either the approver or the appellant they corroborate the prosecution story and the statement of the approver hat on the 10th of February 1973, a man ran out of the house of Faiz Ali lhahi into his courtyard and that he was stopped by Faiz Ali Shah and hat then all the three took that man inside the house. Learned counsel also argued that these two witnesses did not make a report to the police or any other person or authority, but then we cannot forget that these women finesses at that time did not know that a murder had been committed in the house. They asked the wife of Faiz Ali Shah as to what had happened a her house who put them off by saying that a conductor had been beaten by Shah Jeo meaning the absconder. Begum Jan stated that the next day 1st. Nusrat the daughter of Faiz Ali Shah informed her that a Pathan bad been murdered in their house but that Mst. Begum Jan had kept quiet even after that and did not inform the police, therefore, she should not be belied. Je have looked up the Zimnis. Mst. Begum Jan's statement was recorded by the police on 12-2-1973. She had been informed by Mst. Nusrat Jan bout the murder taking place in their house on 11-2-1973. There was not Luch delay in her revealing the information she had received. We cannot respect ignorant women-folk to run to the police immediately they learn of ,me incident. ' It is a well-known rule of law that the statement of an approver who is I accomplice should not be relied on unless corroborated in material particulars but the corroboration required is only in material particulars id not in all particulars. If it were taken to mean corroboration in all particulars, then there would be no fun in recording the statement of an compline and crime would mostly go unpunished. Now we have to see there is corroboration available of the approver in material particulars. To approver stated that after the appellant had given a blow with an iron-r on the head of the deceased, Sher Khan ran out of the house into the urtyard where he was stopped by Faiz Ali Shah and then all three ought him inside the house. This part of the story is corroborated by the statements of Mst. Sabran and Mst. Begum Jan P. Ws. Then the proved stated that the appellant had cut the throat of the deceased with a life. A blood-stained knife was recovered from the scene of occurrence. Blood-stained iron-bar was also recovered from the scene of occurrence. e approver stated that after his return from Nakial the next day, the id body had been cut into pieces by the appellant. The recovery of the td body cut at places stated by the approver had been recovered at the instance of the appellant and it furnished corroboration of the statement of the approver in material particulars. The approver stated that the dead body had been taken by them across the Holar bridge into Pakistan territory and thrown into the jungle. The recovery of the dead body at the instance of the appellant furnishes the corroboration of the statement of the approver in material particulars. The approver stated that after the murder he had changed his clothes and thrown the blood-stained clothes into a room of the house of Faiz Ali Shah absconder. The recovery of the blood-stained clothes of the approver at his instance after his arrest from the house of Faiz Ali Shah furnishes corroboration of the statement of the approver in material particulars. The Chemical Examiner found that the soiled earth from the floor and the scrapings of the walls, the iron-bars, the knife, the clothes were all stained with blood and the Serologist found that all these articles-were stained with human blood. The report of the Serologist also furnishes corroboration of the statement of the approver in material particulars. Then above all there is the confessional statement of the appellant that, though retracted, furnishes corroboration to the statement of the approver in material particulars. ' Learned Counsel for the appellant attacked the recovery of the dead body at the instance of the appellant and stated that the recovery had been made at the joint pointing out of the place by the appellant and Kazim Shah and therefore should be ruled out but from the statement of the prosecution witnesses it is quite clear that after covering about two miles from the Holar bridge
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into Pakistan territory the appellant asked that the jeep should be stopped and getting down he pointed out the place where he had thrown the dead body. Kazim Shah remained in the jeep and in any case it was not on his pointing out of the place that the recovery of the dead body shall be said to have been made but at the pointing out of the appellant Kabir Hussain Shah. ' Learned counsel for the appellant also attacked the recovery of the dead body on the ground that the police knew of the place of the recovery of the dead body and that taking the appellant to the jungle was only a formality. Learned counsel referred to the statement of Yunus Butt P. W. Who stated that he had been asked by the police on the night of the 12th to come to the police station early in the morning since they intended going in search of the dead body and that the witnesses to the recovery were not of the locality. Yunus Butt was taken by the police from Kotli because he was a friend of the deceased and they took him for identifying the clothes. And the dead body of the deceased. Yunus Butt had lived in the neighbour hood of the deceased for four years and had been friendly for this time The other witness of the recovery had been taken by the police from the Holar Bazar. It cannot be expected that the police would look for the witnesses in the jungle. They had to take somebody alongwith them what they were going in search of the dead body. Yunus Butt has no doub stated that they left the police station at 8 in the morning whereas the S. H. 0. Sardar Nazir Hussain stated that after reaching the police station he took the investigation into his own hands and after two or three hour he arrested Kabir Hussain and they left for the jungle accompanied by the appellant to recover the dead body. Yunus Butt is an old man of 60. H might not have correctly stated the time of the departure from the police station and even Sardar Nazir Hussain, S. H. 0. Did not state the exact hot of his arrival at the police station on the morning of 13-2-1973. Kara: Dad P. W. 8 also supports the recovery of the dead body on the point out of Kabir Hussain Shah appellant. He also stated that Yunus Baba.- meaning Yunus Butt P. W., whom he pointed out as present in the Court, was also in the jeep. So it is certain that Yunus Butt went to the spot from where the recovery of the dead body was made in the company of the appellant. ' Learned counsel for the appellant also argued that that the police had learnt of the incident of murder on 10-2-1973 and that the report was later on fictitiously lodged on 11-2-1973. For this he referred to column 3 of the inquest report. The heading of column 3 is 'the date and time of knowing the occurrence of death'. As against this heading the entry is. The officer making the report- in the inquest report has unnecessarily written in column 3 the time and date-of the occurrence which was not required but then the further entry of the time and date of the report shows that the police came to know of the occurrence of the death on 11-2-1973 at 10 p.m. ' Learned counsel for the appellant cited PLD 1959 Lah. 442 which lays down that the failure of a witness to make a report of the occurrence makes the witness no better than an accomplice. He cited this case while attacking the statement of Mst. Begum Jan who stated that on the next date i,e, 11-2-1973 she had been informed by Nusrat daughter of Faiz Ali Shah that a Pathan had been murdered in their house and that she did not go to the police station and inform the police about it. We have already discussed above that when Mst. Begum Jan saw the injured person running out of the house of Faiz Ali Shah into the courtyard, Begum Jan and Mst. Sabran did not know that a murder had been committed in the house. Begum Jan learnt of the murder taking place in the house on 11-2-1973. The case had been registered with the police at that time and Mst. Begum Jan had-been examined by the police on 12-2-1973, therefore, we cannot treat her as an accomplice. Learned counsel also cited PLD 1949 P C 90 which, lays down that approver requires corroboration in material particulars. There is no dispute about the principle laid down by the Privy Council. The learned Advocate-General cited PLD 1958 SC (Pak.) 317 which lays--down that :- "The facts proved against the accused by the corroborative evidence may by themselves be not…
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